| The Law Society of Manitoba Professional Education and Competence |
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| eLaw Labour and Employment Law Update | May 2017 |
| In This Issue |
| Jumping to Termination Precipitous: MB LA Consolidation Should Enhance Stability: MB LB Employment and Labour Law Cases at the Supreme Court Federal Budget 2017: Employment Law Changes Legislative Update Recommended Reading Continuing Professional Development: LSM MBA Programs |
Jumping to Termination Precipitous: MB LA
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In International
Association of Bridge, Structural, Ornamental and Reinforcing
Ironworkers, Local Union 728 v BBE Hydro Constructors Lp, 2017
CanLII 19178 (MB LA), the arbitrator ordered the reinstatement of two
foremen fired for gross negligence for a production error which
necessitated major re-work on a hydro project, finding it was
precipitous of the employer to jump to termination where the employees
were contrite in their evidence, accepted responsibility for the error,
and had no disciplinary record. While the employees’ conduct was a
dereliction of duty, it was not so sufficiently severe as to cause an
irreparable breach of the employment relationship, according to the
arbitrator, and termination was an excessive response to the
misconduct. A written warning was substituted.
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Consolidation Should Enhance Stability: MB LB
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Employment and Labour Law Cases at the Supreme Court
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The court also reserved judgment after hearing the appeal of Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146, on March 28, 2017. This case “raises very important issues as to who is entitled to protections against harassment and discrimination in the workplace and in what workplace settings and employment-related relationship,” according to the author of the article A Schrenk Explainer: The case before the Supreme Court of Canada and why it matters, from the Rubin Thomlinson blog. |
Federal Budget 2017: Employment Law Changes
| The recent federal budget and implementation bill (Bill C-44, introduced April 11, 2017) propose legislative changes to the Employment Insurance Act and the Canada Labour Code, which will affect both employers and employees. Of note are proposals to: allow for extended parental leave; create an EI caregiving benefit; allow federally regulated employees to request more flexible work arrangements; eliminate certain unpaid internships; allow for the electronic distribution of T4 slips; and eliminate the deduction of taxable benefits arising in respect of eligible home relocation loans. For further details see the Slaw article Budget 2017 Bill to Implement Employment Insurance and Canada Labour Code Measures and the MLT Aikins article Federal Budget 2017: How Parental Leave Increase Affects Employers. |
Legislative Update
| Federal Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, is in third reading at the Senate. It repeals the amendments previously brought by the former government in bills C-525 and C-377 (making union certification more difficult and requiring unions to track their spending, among other things). C-5, Economic Action Plan 2015 Act, No. 1, is still before the House of Commons at second reading. It repeals Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1 (Bill C-59), which authorizes the government to unilaterally override the collective bargaining process and impose a new sick leave system on the public service. C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, passed third reading in the Senate with amendments last June. It amends the Public Service Labour Relations Act to provide for a labour relations regime for members of the Royal Canadian Mounted Police and reservists. Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code, was referred to the Standing Senate Committee on Legal and Constitutional Affairs on March 2, 2017. It proposes amendments to the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination and to the Criminal Code to extend the protection against hate propaganda to any section of the public that is distinguished by gender identity or expression and to affect sentencing on such crimes. For further information see the legislative summary, departmental information, and the Slaw article Gender Identity and Gender Expression Protection Under the Law. S-201, the Genetic Non-Discrimination Act, has passed with amendments in both houses, and is awaiting proclamation by royal assent. The government has indicated, however, that it will ask the Supreme Court for an opinion on the constitutionality of the Act. It prohibits any person from requiring an individual to undergo a genetic test or disclose the results of a genetic test as a condition of providing goods or services to, entering into or continuing a contract or agreement with, or offering specific conditions in a contract or agreement with, the individual. Specifically it amends the Canada Labour Code to protect employees from being required to undergo or to disclose the results of a genetic test, and provides employees with other protections related to genetic testing and test results. It also amends the Canadian Human Rights Act to prohibit discrimination on the ground of genetic characteristics. This article discusses the background of the bill and the controversy surrounding its enactment. Provincial These employment and labour related bills are currently before the legislature: Bill 11, The Community Child Care Standards Amendment Act (Staff Qualifications and Training), passed second reading on March 21, 2017. As detailed in the explanatory note, it establishes a new committee to advise on matters related to staff qualifications. Bill 12, The Teachers’ Pensions Amendment Act, passed second reading on March 21, 2017. Its main purpose is to update provisions of The Teachers' Pensions Act for consistency with changes to The Pension Benefits Act that came into force in 2010. The explanatory note provides more detail on the proposed changes. Bill 13, The Regulated Health Professions Amendment Act, passed second reading on March 23, 2017. It amends The Regulated Health Professions Act to allow the minister to exempt a health profession from the statutory prohibition on the online publication of certain health information about disciplined members. See the explanatory note for more information. Bill 28, The Public Services Sustainability Act, passed second reading April 24, 2017. It establishes a four-year sustainability period during which the compensation for public sector employees, and the fee payments to physicians and other health professionals, may not be increased except by the percentages permitted by the bill. Bill 29, The Health Sector Bargaining Unit Review Act, deals with bargaining units and collective bargaining in Manitoba's health sector. It passed second reading April 24, 2017. |
Recommended Reading
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Labour & Employment Law Highlights from 2016
– this TDS LLP article highlights case law and statutory developments
from last year and introduces an issue (legalization of marijuana) that
will impact employers in the future. For more information on that issue
see these articles: Federal Cannabis Legislation: Five Key Considerations for Employers - Blakes; and Legalized Marijuana – Another Balancing Act For Employers – Aird & Berlis LLP. Corporate Directors Found Liable for Employees’ Unpaid Wages – the Saskatchewan Labour Relations Board decision in Thiele v Hanwel, 2016 CanLII 98644 (SK LRB), upholding wage assessments issued against various combinations of directors of a failing business, is a “cautionary tale” for corporate directors, according to both the board itself and the author of this Slaw post. Termination Clauses - a Valuable Tool for Manitoba Employers – this MLT Aikins article highlights what Manitoba employers can learn from the Ontario Court of Appeal decision in Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158. Intentions Passing Like Ships in the Night – this MLT Aikins article discusses Winnipeg Regional Health Authority (Regional Pharmacy Program) v. Manitoba Association of Health Care Professionals, 2016 CanLII 80464 (MB LA), an arbitration decision highlighting the need to ensure that collective agreement language clearly reflects the intended outcome. Beware CASL’s new private right of action requirements! – this Canadian Lawyer article stresses the importance of ensuring compliance with CASL's private right of action provisions, which will come into force July 1, 2017. Limits of the probation clause – this Lawyers Weekly article discusses a BC decision in which the court found that an employee subject to a valid probationary term was nonetheless entitled to reasonable notice of termination because the employer failed to conduct a good faith assessment of the employee’s suitability for continued employment. |
Continuing Professional Development: LSM
| Women Thriving in the Law with a Grit and Growth Mindset (May 15, 2017, half-day) and Getting and Growing Grit: The Secret to Success
(May 16, 2017, lunch session) – these programs, presented jointly with
the MBA’s Women Lawyers’ Forum, will help attendees to develop and
apply a “grit and growth” mindset to the challenges of legal practice. New Civil Queen’s Bench Rules: A Focus on Case Management, Proportionality and Expediency - join Chief Justice Glenn Joyal, Associate Chief Justice Shane Perlmutter, and Michael Weinstein for an overview of proposed changes to the QB Rules and the resulting practice changes. This lunch session takes place on May 24, 2017, from noon to 1:30 pm in the Law Society classroom. Webinar: Avoiding Cyber Dangers – the Law Society is replaying this very practical webinar on June 13, 2017, with a live question period at the end with Law Society staff. Legal technology and risk management guru Dan Pinnington will teach you how to protect yourself and your firm from hacked emails, malware, phishing scams, and other cybercrime vulnerabilities. Group registrants are eligible for discounts. Most Often Asked Questions of a Supreme Court Justice - the Honourable Justices Moldaver and Côté will share answers to the questions they are most frequently asked and attendees will be able to ask their own questions at this jointly sponsored lunch program at the Provencher Room, Hotel Fort Garry. The program takes place from noon to 1:30 pm on June 5, 2017. Final registration numbers must be in by May 25. |
MBA Programs
| Consider bringing a non-member buddy to one of these section meetings: Canada Labour Code Alternative Dispute Resolution – presenters Kristin Gibson and Richard Deeley will discuss potential ADR in hearings dealing with cases under the Canada Labour Code which are considered federal undertakings, such as airlines, interprovincial transportation, and First Nations Bands. The discussion will include what constitutes a Federal undertaking under the code and the defences available to employers. The program takes place May 23, 2017, in the 2nd floor conference room, 444 St. Mary Ave. An Overview of Injunctions and other Extraordinary Remedies - this session will provide an overview of the options available to civil litigators to preserve property, personal rights, business interests and evidence pending trial and how to defend motions for such relief. It takes place from noon to 1:30 pm on May 19, 2017 at the Law Society classroom. |
ISSN 1916-3916